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Summary of NLRB Decisions for Week of July 23-27, 2012

The Summary of NLRB Decisions is provided for informational purposes only and is not intended to substitute for the opinions of the NLRB. Inquiries should be directed to the Office of Public Affairs at Publicinfo@nlrb.gov or 202‑273‑1991.

This is a jurisdictional dispute proceeding under Section 10(k) of the National Labor Relations Act. The employer filed a charge alleging that International Brotherhood of Electrical Workers, Local 196, violated the Act by engaging in proscribed activity with an object of forcing the employer to assign certain work to employees it represents rather than to employees represented by International Union of Operating Engineers, Local 150. The Board denied Local 150’s motion to quash the notice of 10(k) hearing and awarded the work in dispute to employees represented by Local 196 based on the factors of employer preference, current assignment, past practice, economy, and efficiency of operations.

Charge filed by Aldridge Electric, Inc. and International Union of Operating Engineers, Local 150. Hearing Officer Kate M. H. Gianopulos issued her report on December 8, 2011. Chairman Pearce and Members Hayes and Block participated.

This case arises from the petitioner’s objections to a representation election held for a unit of medical social workers employed by the employers in Northern California. Agreeing with the administrative law judge, the Board overruled the petitioner’s objection directed at the employers. These objections are based on earlier unlawful employer conduct directed at three units of employees located in Southern California. The Board found that the earlier employer conduct was remote in time, predating the critical period by several months, and was directed at different units of employees. It further found that, even if the earlier employer conduct had some lingering collateral effect on the petitioned-for unit, that effect was mitigated by the petitioner’s campaign. Disagreeing with the judge, the Board also overruled the petitioner’s objection directed at the intervenor. These objections are based on the intervenor campaign, in which it raised the earlier employer conduct and in which it purportedly threatened that the employers would take the same actions in the petitioned-for unit if the petitioner won. The Board found that the intervenor would not have the power to carry out the purported threat if it lost. The Board further found that, at most, the intervenor’s statements constituted misrepresentations, which do not warrant setting aside an election.

Petitioner—National Union of Healthcare Workers; Intervenor—Service Employees International Union, United Healthcare Workers–West. Administrative Law Judge Lana Park issued her report on July 19, 2011. Members Hayes, Griffin, and Block participated.

The Board adopted the administrative law judge’s finding that the respondent violated Section 8(a)(1) by refusing employee Jerome Ivery’s request for a representative at an investigatory interview because, under the circumstances, Ivery could reasonably have believed that his response to the questioning could result in discipline. Ivery was summoned to the office of two senior managers and given a verbal warning for failing to properly record his hours on his timecard. During that meeting, the managers repeatedly questioned Ivery about an unrelated matter, which they described as behavior that had gotten Ivery into trouble in the past. In a footnote, Member Hayes would find that the meeting was not investigatory under NLRB v. J. Weingarten, 420 U.S. 251 (1975), because the managers informed Ivery that he was not in trouble.

The Board also found that the Respondent did not violate the Act by providing its witnesses paid time off for the shift prior to their testimony. In a footnote, Member Griffin agreed with the Board’s conclusion but would find this case to be “on the outer limits of permissibility.” Member Griffin noted that in this case the respondent paid its witnesses for a shift the day before their testimony in an amount three times greater than that paid to the General Counsel’s witness.

Charges filed by Teamsters, Local 24 a/w International Brotherhood of Teamsters. Administrative Law Judge Mark Carissimi issued his decision on July 11, 2011. Chairman Pearce and Members Hayes and Griffin participated.

The Board (Chairman Pearce and Members Hayes and Griffin) unanimously adopted the administrative law judge’s findings that the employer, Hospital San Cristobal, violated Section 8(a)(5) of the Act when it subcontracted its respiratory care department and laid off eight respiratory care therapists. The Board also found that the Hospital violated Section 8(a)(1) of the Act by instructing employees not to discuss the subcontracting. A Board majority of Chairman Pearce and Member Griffin further found that the Hospital violated Section 8(a)(5) of the Act when it began using “per diem” contractors to replace vacancies in its respiratory care department. Member Hayes dissented on that last violation, and would have found that the Hospital’s established that its use of per diem employees was in keeping with its past practice of doing so, and therefore lawful.

Charges filed by Unidad Laboral de Enfermeras(os) y Empleados de La Salude. Administrative Law Judge Geoffrey Carter issued his decision on February 2, 2012. Members Hayes, Griffin, and Block participated.

ACE Hotel New York (02-RC-071384) New York, NY, July 26, 2012. Decision and certification of representative. Petitioner – New York Hotel & Motel Trades Council. Chairman Pearce and Members Hayes and Griffin participated.

Amalgamated Transit Union, Local 1488, AFL-CIO(18 CB‑080309) Minneapolis, MN, July 23, 2012. Order transferring proceeding to the Board and notice to show cause why the Acting General Counsel’s motion should not be granted. Charge filed by an individual.

Hamza Meat Corp. d/b/a Fine Fare Supermarkets, Inc. (29-CA-030770, et al.) Brooklyn, NY, July 25, 2012. Order transferring proceeding to the Board and notice to show cause why the Acting General Counsel’s motion should not be granted. Charge filed by Local 338, Retail, Wholesale and Department Store Union, United Food and Commercial Workers.

In a published opinion, the Court granted the employer’s petition for review in part, concluding that the administrative law judge (ALJ) misapplied Wright Line and failed to justify his credibility determinations in finding that the employer unlawfully discharged an employee for supporting a rival union. The Court, however, enforced the Board’s finding that the employer unlawfully changed its solicitation policy to undermine the rival union’s organizing efforts and engaged in unlawful surveillance.

The employer discharged an employee based on incidents where she ostensibly spilled water on representatives of the union she disfavored, disrupted the cafeteria during an organizing cafeteria session, and then engaged in a profanity-laced tirade after the employer suspended her. In finding the discharge unlawful, the ALJ discredited the employer’s testimony, finding instead that the employee did not engage in the ostensibly objectionable activity and that the ultimate decision-maker engaged in no investigation to determine whether it was true. The Board adopted the ALJ’s decision with minor modifications.

The Court, however, concluded that the ALJ “misapplied the Wright Line test,” citing Board precedent stating that, regardless of whether he is correct, “[a]n employer who holds a good-faith belief that an employee engaged in the misconduct in question has met its burden under Wright Line” of proving that it would have taken the same action in the absence of union activity. The Court remanded the case to the Board for additional analysis of whether the ultimate decision-maker had a reasonable belief of the employee’s wrongdoing, and to evaluate whether Wright Line orBurnip & Sims, the precedent the Board typically applies to discharges based on good-faith belief of misconduct during otherwise protected activity, should apply. The Court also expressed “great concern” about the ALJ’s credibility findings, and stated its “hope” that the Board would alleviate its concerns on remand.

Next, the Court agreed that the employer unlawfully prohibited one union from soliciting in employee-centered cafeterias. The Court rejected, as contrary to the credited evidence, the employer’s claim that it was unaware of any prior solicitations, and thus could not have changed its policy. In any event, as the Court noted, “well-established case law prevent[s] hospitals from banning solicitation in employee-focused cafeterias” without special justification, which the employer failed to prove here. Finally, in the absence of challenge, the Court summarily enforced the Board’s finding that the employer unlawfully surveillance employees’ protected activity.